Judicial originalism as myth – Vox
“It is simply anti-democratic to conceal something as fundamental as the nature of constitutional decision-making — especially if concealment is motivated by the fear that the citizenry wouldn’t stand for the practice if it knew the truth. If the Court can’t admit what it is doing, then it shouldn’t do it.” —Paul Brest, 1981
The doctrine of originalism, whereby judges purport to identify and then rely on the original meaning of the United States Constitution to resolve constitutional cases, is more ingrained in our national consciousness today than at any other time in our history. Six years ago, one of our most liberal justices, Elena Kagan, stated during her confirmation hearing that “we are all originalists.” Prominent professors are proudly proclaiming in our most elite law reviews that “Originalism is our Law.”
President Donald Trump promised to nominate an originalist justice to the Supreme Court, and then followed through on that promise with Judge Neil Gorsuch, who self-identifies as an originalist. At his confirmation hearing, the term “originalism” will no doubt be uttered by every GOP senator trying to win points with his constituency and establish the nominee’s bona fides as the heir apparent to the late Justice Scalia.
This genuflection toward the original meaning of the Constitution is, however, at best misleading and at worst a sham. What the words of the document meant to the people living at the time is just one of many different factors judges use to decide constitutional cases. So-called original meaning almost never drives the results in litigated cases but instead is used by judges to justify results they reached on other grounds. As Judge Richard Posner has written, “there has never been a time when the courts of the United States behaved consistently in accordance with the ideal” described by originalists.
There are strong reasons why judges have never consistently used originalism to decide hard cases. For one thing, if the original meaning of the framers of either the original Constitution or the Reconstruction amendments were taken seriously by today’s judges, we would live in a much different and much worse society. Segregated schools under the law and official governmental discrimination against women, gays, and lesbians would be permissible.
For example, Brown v. Board of Education, one of the most important cases of the 20th century, would have turned out the other way if the justices had accepted originalist principles. The lawmakers and people who ratified the 14th Amendment, the post-Civil War amendment that granted equal protection under the law to black citizens, did not universally embrace segregation, but they indisputably understood it to be constitutionally permitted.
Criticism of Brown today would make any federal court nominee toxic and unconfirmable, so originalists have had to come up with remarkably contorted arguments to escape this obvious conclusion. Some, like Stanford’s Michael McConnell, have made unpersuasive arguments that the people living in 1868, when the Fourteenth Amendment was passed, and shortly thereafter, would have thought segregated schools to be illegal. (McConnell, strangely, places special emphasis on the debates leading up to the Civil Rights Act of 1875, highlighting anti-segregationist arguments — and downplaying the widespread segregation of schools in 1868.)
Judge Robert Bork, a hero to originalists, made several arguments about Brown. In a 1971 law review article, he argued that the 14th Amendment “was intended to enforce a core idea of black equality against government discrimination.” In short, he created an abstract ideal, opening the door to arguing that what “equal” meant in 1868 is different from what it meant in 1954 (and today). But of course, once that move is made for “equal,” why not for “due process,” “establishment,” “cruel and unusual,” and other vague constitutional language that Bork thought liberal judges and scholars abused?
A true originalist (or textualist) might also have to conclude that the entire Bill of Rights, including its protections for free speech, freedom of religion, and criminal procedure would be inapplicable to the states. After all, the First Amendment only limits the power of “Congress.” The great Chief Justice John Marshall held that none of the Bill of Rights limited state power. Whether or not the 14th Amendment changed that analysis as an historical matter is hotly contested. While over time the justices have concluded that most of the protections in the Bill of Rights apply to the states through the due process clause of the Fourteenth Amendment, others think that result is not justified by either the text or history of that provision.
As Erwin Chemerinsky, dean of the law school at the University of California Irvine, has pointed out, a serious text-and-history approach (as opposed to a lip service one) would mean the end of judicial protection “for liberties such as the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right to abortion, the right to refuse medical care, [and] the right to engage in private consensual homosexual activity. No longer would women be protected from discrimination under equal protection.”
Of course, no constitutional theory should be judged by outcomes alone. But most of the rights mentioned by Chemerinsky are utterly uncontroversial today. Although some forms of modern originalism might not be inconsistent with all of these rights, and some originalists might say that stare decisis concerns — that is, the imperative to follow precedent — would lead them to approve some of them, it is still startling how many basic rights we take for granted would be endangered if a majority of the court employed originalism in good faith.
The belief that originalism does not and should not drive judicial decisions is not new. In 1939, Professor Jacobus tenBroek of the University of California at Berkeley demonstrated that what he called “original intent” (but today we call original meaning) constituted “one of the fundamental fallacies of the Supreme Court of the United States.”
The arguments he made in support of this conclusion, made in a remarkable five-part series in the California Law Review, are all but unanswerable as a description of how the Court decides constitutional cases. His work is as important today as it was then; all the reasons he gave for rejecting originalism as both a descriptive and normative theory apply with equal force to the modern Court. Long before the debate between the originalists and so-called living constitutionalists of the 1980s, tenBroek’s series showed with surprising clarity how misleading it is for judges and academics to suggest that original meaning either does or should play a significant role in constitutional interpretation.
In the first four parts of his series, tenBroek showed — through a detailed historical analysis of judicial decisions — that the Justices sometimes used historical sources to support their legal conclusions but often did not. In important 19th-century cases ranging from the validity of a national bank to the constitutionality of congressional efforts to limit slavery to the permissibility of Congress printing paper money, the justices selectively used historical sources including the Federalist Papers, the actions of early Congresses, and the opinions of the Founding Fathers. It was hard to conclude, tenBroek summarized, that the judges weren’t simply selecting evidence in order to justify the results they preferred.
A modern example of this selective originalist interpretation by judges is the landmark Second Amendment case District of Columbia v. Heller, of 2008, in which Justices Scalia and Stevens canvassed what each thought to be the relevant historical sources only to come to completely different conclusions as to whether the amendment protects an individual right to own guns. Serious historians have not treated either opinion kindly, and of course both men, like the justices discussed by tenBroek, reached the conclusions that you’d expect given their values writ large.
In the series’ fifth and most important article, tenBroek added to his detailed historical analysis two normative assumptions that he said the justices claimed to adhere to when resolving constitutional questions: 1) judges should “abandon” contemporary perspectives in deference to the “vantage point” of the people living when the Constitution was adopted; and 2) the original meaning of the Constitution does not change.
Most modern originalists, including the late Justice Scalia and Justice Thomas, would agree with tenBroek’s description of originalist assumptions. Scalia spent years touring the country telling audiences that the Constitution, far from being a living document, was “dead, dead, dead.” So-called “New Originalists” like Georgetown University’s Randy Barnett, who, unlike Scalia, concede that originalism often runs out in hard cases before “constitutional construction” begins, also believe that the meaning of the Constitution doesn’t change. In Barnett’s words, “an originalist simply could not accept that the Supreme Court could change the meaning of the text from what it meant as enacted and still remain an originalist.”
TenBroek demonstrated, however, that the original meaning of the Constitution in fact changes all the time in the hands of judges and justices (as it should, to keep up with modern conditions).
In the space of just a few years, tenBroek observed, minimum wage laws for women were first held to be unconstitutional as being beyond the police power of the state and then upheld as rationally related to legitimate economic concerns. Pointing to the reversal of numerous important cases by the post-New Deal Court, tenBroek observed that these “changes in the meaning of the Constitution did not result from altered judicial views as to the original intent; they came rather from a different prevailing attitude in the Court with respect to economic, social, and political policy.”
Modern originalists might respond that the justices who upheld significant economic regulation after the initial rejection of many New Deal programs misread and changed the scope of the commerce clause and other sources of federal power. Strikingly, however, doctrinal changes are often agreed to by so-called originalist justices who vote for non-originalist interpretations (without admitting it).
For example, for many years the Supreme Court gave little or no judicial protection to commercial speech rights of corporations or the desires of state governments to be immune from direct congressional regulation (commandeering). Recently, however, with Justices Scalia and Thomas agreeing, the Court has changed its mind on both issues with little regard to the original meaning of the relevant constitutional provisions.
In fact, as I have argued elsewhere, the list of non-originalist results advocated by these two justices is quite long and cuts through large swaths of constitutional law including affirmative action, takings, campaign finance reform, standing, and sovereign immunity. Many of these changes overturned prior Supreme Court cases. Judge Posner is right: No Supreme Court Justice, including Scalia and Thomas, has ever employed originalism on a consistent basis
Some modern-day “New Originalist” scholars argue that even though the meaning of the constitutional text does not change, that meaning will inevitably be applied by judges to new conditions, a process that will produce evolving constitutional decisions. As noted earlier, Randy Barnett calls this “constitutional construction.” If a case cannot be decided by way of the original meaning of the text, Barnett says, judge should look to the “spirit” of the text. He describes the search for this “spirit” as an empirical inquiry and contends (implausibly) that this search is less open-ended than theories of constitutional interpretation advanced by non-originalists.
But this is an originalist argument in name only. Professor Barnett’s “constitutional construction” is just another form of “living constitutionalism,” given that identifying the “spirit” of vague constitutional provisions with contested histories allows judges and scholars to advocate for just about any and all results.
In Barnett’s hands, for example, our Constitution’s “spirit” is overwhelmingly libertarian, and would bar much economic regulation that we now take for granted. That “spirit” also justifies a strong Second Amendment and even allows judges to use the historically ignored Ninth Amendment to find and enforce fundamental rights. It is no coincidence that all of these ideas are consistent with Barnett’s personal worldview, as I argued in a review of his latest book.
In recent years, numerous self-identifying new originalists have reached the remarkable conclusions that, based on originalism, same-sex marriage is required under the 14th Amendment while affirmative action is barred under the same provision even though there are no strong arguments that the people who ratified the 14th Amendment would have agreed with either conclusion. These scholars want to don the originalism mantle while at the same time avoid being locked into the specific results that the original ratifiers of our Constitution and its amendments would have expected. In other words, they want to argue they are using originalist arguments at the same time that they disavow the obvious consequences of originalism for many modern problems.
We all agree that specific constitutional requirements, such as there must be “two” senators from every state or the president must be “35,” must be enforced strictly and without regard to changing facts. But if words and phrases like “equal protection of the laws,” “due process of law,” and “freedom of speech” can lead to different judicial conclusions at different times because of different modern conditions (which Barnett and other new originalists have conceded), then there is no difference between originalists and non-originalists for any case likely to be litigated. This conclusion is consistent with tenBroeks’s study showing judges will reach the results they think best whether or not they are justified by the original meaning of the Constitution.
On March 20, when the confirmation hearings are scheduled to begin, Judge Gorsuch and the United States Senate are going to play an elaborate trick on the American people (just as Justice Scalia did for years). They will pretend that the original meaning of the Constitution is what judges both use and should use to resolve hard constitutional questions. Gorsuch has said, “Judges should … strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”
But Gorsuch does not make decisions like that now, and he will not make decisions that way if he makes it to the Supreme Court. The confirmation process will have been a sham because, as tenBroek demonstrated almost 80 years ago, the justices don’t decide cases that way, and they shouldn’t decide cases that way.
The original meaning of the text, if there even is such a thing in hard cases, is but one small factor in a complex assessment of how an ancient document should govern modern times, and original meaning pales (and should pale) as a determinant of decisions, compared with the politics, morals, and values of a majority of the justices on the Supreme Court.